A Toronto restaurateur who threw spices in the face of a man he believed had stolen a GPS and laptop from him four days earlier has been convicted of assault with a weapon and assault causing bodily harm.

Justice Peter Harris of the Ontario Court of Justice said Naveen Polapady — who admitted to throwing chicken masala chili spice at Emanuel Belo, but claimed he did it after the witness attacked him with a large stick — “is not believable on the key issues of this case.”

Surveillance footage taken behind Mr. Polapady’s Maroli restaurant on Bloor Street West in August of 2011 show him wielding a broomstick and exchanging blows with Mr. Belo, who was initially arrested but never charged in the incident. Instead, Mr. Polapady was charged with assault. The case sparked an intense debate over the rights of citizens to defend their property; Mr. Polapady was initially labelled a hero, but those plaudits faded amid revelations that the accused had mistaken Mr. Belo for a local thief who has since been convicted of stealing electronics from the restaurateur’s car.

Despite the mistaken-identity aspect, Mr. Polapady and his lawyer maintained that Mr. Belo, who said he was merely scanning the parking lot in search of empty bottles and cans when the accused attacked him, was the aggressor.

Justice Harris disagreed.

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“I recognize the fact that Mr. Palopady was incensed about his van being burglarized and was, to some degree, hyper-sensitive about strangers entering upon his property at the back of his restaurant. It may have been reasonable for Mr. Polapady to have rather sternly admonished Mr. Belo for entering his property, and to have even used some force to eject him. Yet Mr. Polapady went far beyond what was required. In my view, there was no reasonable perception of force being used by Mr. Belo, no defensive purpose on the part of the defendant and no objectively reasonable basis for using force in self-defence.

“In all the circumstances, the evidence overwhelmingly points to an individual who was so sure he had the GPS thief and so angry about the loss of his property, that he waited for the predictable return of Mr. Belo with weapons in hand to teach him a lesson.”

“The welts on Mr. Belo’s body, particularly on his right forearm and wrist suggest he had adopted a defensive posture. While momentarily blinded by the masala chili spice, it appears he was struck over the head with the broomstick.”

The Crown witness at the centre of the controversial “Spiceman” trial spun a fiction to disguise his own criminal intentions, a defence lawyer contended Thursday.

Manuel Belo, who received a faceful of spicy sauce after restaurateur Naveen Polapady discovered him lurking outside Maroli on Bloor Street West two years ago, says he was merely scanning the parking lot in search of empty bottles and cans when the accused attacked him. But lawyer Calvin Barry — who tore into Mr. Belo’s credibility, accusing him of “misleading” police or the court — suggested otherwise, saying Mr. Belo reacted violently after Mr. Polapady caught him “red-handed” trying to steal items from a restaurant-supply van.

“You don’t want the court to know that you were trying to break in,” Mr. Barry asserted.

“No, that’s incorrect,” Mr. Belo testified.

Mr. Barry maintained that Mr. Belo invented the empty-bottle story as a convenient explanation for his presence on Mr. Polapady’s property that day. The defence cited a number of inconsistencies in Mr. Belo’s testimony about his bottle-and-can collection habits, including shifting descriptions of how often he rode his bicycle through the Maroli parking lot and precisely where he spotted empties.

“You have to have an excuse for why you’re back there. [You attacked Mr. Polapady because] he caught you with your hand in the cookie jar,” Mr. Barry said.

“No, my hands were on my [bicyle] handlebars,” Mr. Belo shot back.

The trial of the vigilante restaurateur — who admits to throwing masala spice mixture in Mr. Belo’s face, but says he did it after the witness attacked him with a large stick — has been spread out over several months inside the Old City Hall courthouse.

Surveillance footage of the August 2011 altercation shows Mr. Polapady wielding a broomstick and exchanging blows with Mr. Belo, who was initially arrested but never charged in the incident. Instead, Mr. Polapady was charged with assault. The case sparked an intense debate over the rights of citizens to defend their property; Mr. Polapady was initially labelled a hero, but those plaudits faded amid revelations that the accused had mistaken Mr. Belo for a local thief who has since been convicted of stealing electronics from the restaurateur’s car.

Despite the mistaken-identity aspect, Mr. Barry on Thursday maintained that Mr. Belo was the aggressor in the August 2011 scuffle, noting it was Mr. Polapady who ultimately dialled 911. If Mr. Polapady was in the wrong, Mr. Barry asked the witness, “why didn’t you phone the police?”

Mr. Belo testified that his priority was to get home and wash the spicy mixture off his face.

A year after the Prime Minister’s Office called to express support for Toronto restaurateur Naveen Polapady, the court on Friday heard a very different account of the vigilante Spiceman, whose case spurred a national debate on the rights of citizens to defend their property.

For the first time publicly, Manuel Belo — the 51-year-old who infamously received a faceful of masala spices when Mr. Polapady mistook him for a car thief — told his side of the story, describing how he began the morning of Aug. 21, 2011, on his bicycle, scavenging for bottles and cans to supplement his modest bricklayer’s income. He had just finished scanning the parking lot behind Maroli restaurant on Bloor Street, when out of nowhere he felt a substance “like spaghetti sauce watered down” thrown into his face.

“My vision was impaired. My breathing was impaired,” said Mr. Belo, a reformed crack addict who was once jailed for stealing copper wire and subsequently began volunteering at a local food bank.

“It was thrown directly over my face, all over my head… It went in my eyes, it went in my mouth [and] I couldn’t see anything at all,” Mr. Belo told Mr. Polapady’s assault trial. “My eyes were stinging.”

It became difficult to breathe, he added, as each gulp of air felt “like swallowing hot coals.” His first reaction was shock.

“I was just surprised,” he testified. “I didn’t realize what was going on.”

The precursor to the spice-hurling incident came four days earlier, when convicted thief Jason Mitchell broke into Mr. Polapady’s car to steal several items, including a GPS device and a laptop.

The defence contends Mr. Mitchell and Mr. Belo bore a “startling resemblance” to each other, almost like twins. Summoned to the stand Friday, Toronto Police Const. Shahrukh Mirza agreed they had “certain features” in common; both were white, had receding hairlines and were wearing backpacks and riding bicycles.

So when he found Mr. Belo lurking in the Maroli parking lot on Aug. 21, 2011, Mr. Polapady assumed he had caught the thief red-handed, the court heard. Surveillance footage shows the pair grappling as Mr. Polapady wields a broomstick.

Mr. Belo says he felt his body “being whacked” by that stick moments after the sauce-like spice mixture hit his face.

Whack. ‘Where’s my GPS?’ Whack. ‘Where’s my GPS?’

“I felt the stick break once [on my arm] and then I felt it break again on the other arm,” Mr. Belo testified, noting he pleaded with his attacker to stop, but all the other man said in response was: “Where’s my GPS?”

The stick connected with his legs and arms, Mr. Belo said, and opened a gash in his head that required six stitches.

“I tried to punch him but I couldn’t see where he was too well,” Mr. Belo said, adding he screamed at Mr. Polapady to leave him alone. “[I told him], ‘I’m just collecting empties. I don’t have the GPS. But all I kept getting was: Whack. ‘Where’s my GPS?’ Whack. ‘Where’s my GPS?'”

The two scuffled for a brief period before breaking apart and leaving the area separately, Mr. Belo on his bicycle and Mr. Polapady in his van. As he cycled away, Mr. Belo says he came across a garden hose and used it to wash the red spice mixture from his hair, ears and face.

During cross-examination, defence lawyer Calvin Barry suggested that even though Mr. Belo was not the GPS thief from days earlier, he had indeed attempted to open the back door of Mr. Polapady’s van on Aug. 21, 2011, and was “caught in the act.”

“You lunged at him and with your other hand you grabbed at his throat… It’s a full-blown fight,” Mr. Barry said.

Mr. Belo disagreed, maintaining he had only stopped by the Maroli lot to check for bottles and cans. The ensuing struggle prevented him from attending his brick-laying job for a few days, he testified, primarily because of the swelling to his legs.

Ever since that fateful day, Mr. Belo says he has refrained from collecting any stray bottles or cans. Sometimes he comes across empties in the park, but he lets them lie.

“With my luck,” he told the court, “if I bent down to pick it up, squirrels would think I’m trying to steal their chestnuts.”

Naveen Polapady, the restaurateur who threw masala spice powder into the face of a man he believed was trying to break into his vehicle, said his opponent warned “he was going to kill me.”

Mr. Polapady’s account of the 2011 scuffle, which appears to have been predicated on a case of mistaken identity, was recounted during his assault trial in a downtown courthouse Thursday.

“He got a lumber, or some kind of big thing… and then charged me. I had this chicken masala and I threw it on him. He was pushing me, holding my neck and grabbing me. Then I broke free and I ran out of my backyard,” Mr. Polapady said in a 2012 statement on the incident.

“I escaped him, basically. I had to defend myself… He was not letting me leave and telling me he was going to kill me.”

As it turned out, the victim of Mr. Polapady’s spice-throwing, Manuel Belo, was not the car thief Mr. Polapady believed he was. Days earlier, Jason Mitchell — who ultimately pleaded guilty to the crime — had broken into the Bloor Street West restaurateur’s car and stolen several items, including a laptop and GPS device.

Mr. Belo and Mr. Mitchell were somewhat similar in physical appearance, the court heard, and when Mr. Polapady saw Mr. Belo lurking in the parking lot on Aug. 21, 2011, he assumed the thief had returned for more.

“I saw this guy who was trying to open the back door of my van… I said, ‘What are you doing?’ And I took out my phone and then he started attacking me,” Mr. Polapady said, according to a handwritten transcript of his interview last year with Ontario Provincial Police Constable Clay Martin. The officer was assigned to speak with Mr. Polapady after his request for a liquor license was flagged due to his outstanding criminal charges.

After the struggle, Mr. Belo cycled away and Mr. Polapady began following him in his car.

“One guy has been trying to steal. I caught him,” Mr. Polapady said in a 911 transcript entered into evidence Thursday. He explained to the dispatcher that he was tracking the alleged thief, noting the man had stolen several items from his car days earlier.

“I caught him red-handed in the same premises,” Mr. Polapady told the 911 operator.

‘I escaped him, basically. I had to defend myself… He was not letting me leave and telling me he was going to kill me’

Footage of the altercation made public earlier in the case shows Mr. Polapady wielding a broomstick and exchanging blows with a man wearing a backpack and baseball cap. There has been some dispute in court over whether all the available footage from Mr. Polapady’s shop was turned over to investigators.

Police initially arrested Mr. Belo — who suffered a gash to his head in the scuffle and was found with visible traces of orange masala spice powder on his body — but later released him and arrested Mr. Polapady instead.

The so-called Spiceman case has generated significant debate over the rights of citizens to defend their property. Initial comparisons to the case of Chinatown grocer David Chen, whose arrest for detaining a repeat shoplifter spurred new legislation to expand citizen’s arrest powers, faded after the mistaken-identity aspect came to light.

The National Post’s Dionne Wilson examines Bill C-26, the federal Citizen’s Arrest and Self-defence Act, which came into force Monday.

Q How does Bill C-26 change the law surrounding citizens’ arrests?

A Before Bill C-26, the law stated that a citizen could only arrest a suspect who was actively engaged in a crime against that person’s property. The new legislation expands the definition to allow arrests “within a reasonable amount of time” of the criminal offence. “Canadians want to know that they are able to protect themselves against criminal acts and that the justice system is behind them, not against them,” Justice Minister Rob Nicholson said in a statement announcing the implementation of Bill C-26. Such authority only applies when police cannot feasibly make an arrest, the ministry noted — and citizens are still expected to contact police as soon as possible following an arrest.

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A The amendments to the bill were inspired by Chinatown store owner David Chen, pictured, who was charged with assault after he chased down, tied up and detained a shoplifter at the Lucky Moose food mart. The case spurred public outrage and debate over citizens’ rights to protect their property. Mr. Chen, who was ultimately acquitted, said he is extremely proud of the resulting legislative shift. “I never think about [the fact that] I can change the law,” Mr. Chen said Monday. He said his store has seen fewer shoplifting attempts since he became the face of Bill C-26.

Matthew Sherwood for National PostMaroli restaurant owner Naveen Polapady was dubbed “Spiceman” after throwing masala spice powder in the face of a man he believed was trying to break into his car.

Q What about more complex cases, like the ‘Spiceman’ in Toronto?

A The case of the “Spiceman,” Naveen Polapady, is indeed more complicated, though it initially spurred comparisons to the Chen case. Mr. Polapady was arrested after throwing masala spice powder into the face of a man he believed was attempting to break into his car again; someone had broken into the vehicle days earlier and stolen several items. But as Mr. Polapady’s trial began last month, the court heard he actually targeted the wrong man — the person who ended up with a faceful of spices was not, in fact, the thief. Defence lawyer Calvin Barry said Bill C-26 may still contain the defence Mr. Polapady needs for an acquittal, since the legislation says a person defending his own property is not guilty if he believes on “reasonable grounds” that another person is about to take or destroy that property. “We’re going to take advantage of the new provisions to the Criminal Code,” Mr. Barry said.

Q Are there any concerns with the new law?

A The legislation says an arrest can be made within a “reasonable time,” without giving a precise definition to the term — leading to a potential grey area when matters land before the courts. Cases like Mr. Polapady’s also raise concerns about the notion of “reasonable grounds,” said Nathalie DesRosiers, executive director of the Canadian Civil Liberties Association. She believes the new law leaves too much ambiguity: “You can image the possibility of mistake, the possibility of abuse, of someone being told, ‘I reasonably believe.’ ”

National Post

]]>http://news.nationalpost.com/2013/03/12/lucky-moose-bill-loosens-self-defence-citizens-arrest-laws/feed/4stdStorekeeper David Chen outside of the Lucky Moose Food Mart on Dundas Street West in Toronto's Chinatown on October 1, 2010Matthew Sherwood for National Post